Wednesday, March 26, 2014

Your Curmudgeon has just received reliable word that ECUSA and its attorneys intend to ask the United States Supreme Court to review the (interlocutory!) decision by the Supreme Court of Texas in Episcopal Diocese of Fort Worth v. Episcopal Church (USA), in which the Texas Court recently denied ECUSA's petition for a rehearing. The decision is called "interlocutory" because it is not a final one -- the case still has to go to trial before Judge Chupp in Tarrant County District Court.

The U.S. Supreme Court, as a rule, accepts review of interlocutory decisions only in cases of extreme emergency, where further proceedings in the lower court could wipe out a party's chances ever to take a future appeal from the final decision, when it is eventually entered. (Recall that the Court denied the petition for review ("certiorari") filed by St. James parish, in Newport Beach, following the interlocutory decision by the California Supreme Court in The Episcopal Church Cases -- which returned those cases for trial, just as in Texas.)

Moreover, we have seen SCOTUS now deny review of no less than three already final decisions in recent church property cases: from the courts in Connecticut, Georgia and Virginia. So not only are the odds of the Court's granting review of the Texas interlocutory decision virtually zero, but even if the decision were final, the odds would still be vanishingly small.

To waste ECUSA's resources on such a petition to SCOTUS (which I estimate will cost ECUSA approximately fifteen to twenty-five thousand dollars), therefore, is a vain act which can be motivated only by another goal. And what could that other goal be? Why, of course -- to keep up the financial and administrative pressure on Bishop Iker and the parishes of his Episcopal Diocese for as long as conceivably possible.

When ECUSA prevailed on summary judgment before Judge Chupp, it exacted a $100,000 cash bond from Bishop Iker's Diocese to be paid into the court's registry. The bond was a condition of the Diocese's being allowed to take an appeal to the Texas higher courts without having to turn over all its properties to the rump group in the meantime. Moreover, ECUSA persuaded Judge Chupp to require each and every one of Bishop Iker's parishes to complete and deliver to the rump group a monthly report of the parishes' operations and status pending the appeals. This allowed 815 and their attorneys to monitor, over the last 18 months, exactly how Bishop Iker and his Diocese were functioning under the pressure of the pending lawsuit.

(How have they been doing? Hint: they haven't been getting smaller.)

With the complete reversal of Judge Chupp's judgment by the Texas Supreme Court, the bond money should be returned to Bishop Iker's corporation, and the requirement of monthly reports ended, once the mandate (the official notice of an appellate court's ceasing jurisdiction over an appeal) returned to Judge Chupp's court from the Supreme Court. The petitions for rehearing were denied on Friday, March 21, and Judge Chupp's clerk indeed received the mandate from the Supreme Court yesterday, March 24. So the case is now officially back before the trial court, which accordingly has the jurisdiction to enter further orders in the case.

Today, Bishop Iker's attorneys filed a motion with Judge Chupp to dissolve his earlier order requiring the posting of the bond and the monthly reporting. However, today ECUSA's attorneys notified Bishop Iker's attorneys that they will be filing with the Texas Supreme Court a motion to recall the mandate from the trial court, pending their filing of a petition for certiorari with SCOTUS, and pending that Court's final action on their petition.

There is no need for the Texas Supreme Court to grant ECUSA's motion and to recall its mandate -- unless the odds favored an acceptance of review by SCOTUS, and ECUSA could make a case that Bishop Iker's Diocese would dissipate the $100,000 and allow its parish buildings to fall apart in the meantime. The mandate can remain in the trial court while ECUSA pursues the vain hope of getting SCOTUS to intervene. (Were that Court -- incredibly -- to do so, the mandate would automatically shift to the Supreme Court until it rendered its decision in the case, and all petitions for rehearing of that decision had been denied.)

But -- and here is the motive for ECUSA's trying to get the Texas Supreme Court to recall it -- if the mandate remains with Judge Chupp while ECUSA prepares its petition to SCOTUS, Judge Chupp could in the meantime grant the motion of Bishop Iker's attorneys. That would result in the immediate repayment of the $100,000 to the Episcopal Diocese of Fort Worth, and it would also relieve all the parishes of filing reports at the end of this month.

If the mandate returns to the Texas Supreme Court, only that Court could grant a motion setting aside the requirements of Judge Chupp's order -- and again, upon a showing that there was no irrevocable harm that could occur to ECUSA by dissolving the order in the meantime.

So the burden of proof would shift. Right now, before Judge Chupp, the burden is on ECUSA to make a showing that it would suffer irreparable harm if the money was returned and the reporting requirement lifted pending its application to SCOTUS for relief. But if the Texas Supreme Court recalls its mandate, the burden would then be on Bishop Iker's group to make a showing that ECUSA and its rump group would not suffer any such harm in the interim.

And that is the strategy underlying ECUSA's game in Texas. Never mind the cost, and never mind the miniscule chance of ever securing review by SCOTUS: make things as expensive, as drawn out and as uncertain as possible for Bishop Iker and his faithful parishioners, because punishment and revenge are the main goals here, and not victory in the courts.

ECUSA has shown already that it is following the same strategy of punishment and revenge in South Carolina (where it likewise tried to appeal an interlocutory order), in Illinois (where it got the Court of Appeals to reinstate the freeze on the funds of the Anglican Diocese of Quincy, pending the current appeal), and in California -- where it even tried to prevent St. James from being allowed to answer its complaint after the California Supreme Court ruled that the complaint stated a claim for relief. It will leave no stone unturned, no avenue not taken, in its abiding effort to crush all of those who dare oppose it financially, and through the sheer burden of multiple lawsuits that seek the maximum in punitive damages from individual rectors and vestry members.

815, in short, has become a litigious monster that is out of control. Its litigation policy is not guided by any Christian motives, and is not being checked by the House of Bishops, or by any other branch of the Church. The so-called Task Force on Reimagining the Church is babbling its way to irrelevancy, while the real power in the Church yields not one inch toward making things different. Worse still, the Presiding Bishop indicates that she is "open" to being renominated for a second term!

We are witnessing what I predict will be beginning of the end for ECUSA and the powers that run it from their comfortable perches at 815. When all prudence and caution is tossed out the window in an effort to prevail at any cost, the desperation of the need to win grows more and more acute with every new setback and loss. And please believe me -- none of these current moves by ECUSA will result in anything but setbacks and losses. The judicial system may be slow and ponderous, but for that very reason it is not susceptible to being bent for personal ends.

Meanwhile, Episcopalians in non-litigating parishes and dioceses should be asking: Why the silence? Why is 815 being allowed to run amok with the Church's precious resources? Who is really in charge? Where are those who helped put the Presiding Bishop into power, and who will act now to curb her irrationality and her grasping at straws?

Your Curmudgeon is doing what he can to point out the dangers and to sound the alarm, but a single blog cannot do enough alone. This donnybrook needs to be discussed on the floor at the current HoB meeting, and the Presiding Bishop held to account to the full House for her unconscionable and vindictive litigation tactics. And once that is done, the parishes and bishops in the non-litigating dioceses need to keep up the heat -- just as the PB herself is doing -- until she is reined in, and called to account. To do anything less is, for the entire Church, a scandal which will rest upon all our heads.